The year 2022 may bring changes to the pre-action protocol (PAP) regime which prescribes what steps parties to disputes should take in advance of court proceedings. The Civil Justice Council (CJC), which is responsible for making policy recommendations about civil justice issues, is currently consulting on a number of reform options for PAPs. While some of the options being considered will be welcomed by professionals and their insurers, others could make the conduct of claims at the pre-action stage more problematic and result in increased costs. The consultation closed on 21 January 2022 and we now await the CJC's final recommendations.

What are PAPs?

PAPs, such as the Pre-Action Protocol for Professional Negligence, were introduced as part of the Woolf reforms over 20 years ago. They aim to establish sensible pre-action conduct by ensuring that parties have sufficient information to engage with each other with a view to resolving or, at least, narrowing the issues in dispute before going to court. It was hoped that this, in turn, would lead to increased efficiency and reduced costs and adversarial conduct in litigation.

There are now 18 different PAPs in existence governing pre-action conduct in a range of disputes. The CJC published an Interim Report in November 2021 in which it considered a number of reform options aimed at improving the effectiveness of PAPs particularly as the courts move towards a more digitalised justice system.

14 day letter of response

One of the proposals of concern to professional defendants and their insurers is that the timetable for complying with the claimant's pre-action letter of claim should be reduced from three months to 14 days consistent with the period proposed under a new general PAP. It is proposed that defendants should have a right to extend the deadline for a further 28 days (so a total of six weeks) where further information or expert evidence is required. The report says defendants could still take up to three months to respond but this will only be if the claimant agrees to a further six week extension – it would not be an automatic right.

The CJC has proposed this change because it considers the current three month timeframe to be excessive. It points to the fact that other categories of disputes also require expert evidence but manage to obtain such evidence within shorter timescales. The CJC Interim Report also states some of the respondents to its preliminary survey in 2020, with (presumably claimant) experience of professional negligence claims, also thought that three months was too long.

From a defendants' perspective, the existing three month timeframe can be challenging in many cases. This can be for a number of reasons such as complexities in the underlying claim, obtaining adequate instructions and the time it takes to locate and obtain expert evidence. Many letters of claim lack particularisation and further information/documentation is often required before the case against the defendant can be properly understood to enable a compliant letter of response to be prepared.

Pre-action statement of truth

Professional defendants and insurers may also be concerned by the suggestion by the CJC that pre-action letters should be verified by a statement of truth. The CJC is considering this option in light of the Court of Appeal's decision in Jet 2 Holidays Ltd v Hughes & Anor [2019] EWCA Civ 1858 that knowingly false statements in pre-action correspondence can constitute contempt of court. The CJC also suggest that it would discourage parties from making knowingly false or unsupportable claims and defences.

Whilst defendants might prefer to receive a letter of claim which has been verified by a statement of truth, this requirement could place an unfair burden on defendants, who are already under far more time pressure than claimants, when preparing their response to a letter of claim. An obligation to include a statement of truth with a letter of response is likely to lead, at least in some cases, either to an overly cautious response pending further investigation and analysis and/or a further front-loading of costs to ensure that what is in the letter of response is demonstrably supported by the evidence.

The CJC Working Group felt on balance that statements of truth should not be required at the pre-action stage but welcomed respondents' views on this proposal.

Further proposed reforms

We have highlighted in this article just two reform options from a significant number which the CJC is considering in relation to the PAP regime. Others include:

  • A new provision that the parties initiate "good faith steps" (such as mediation) to be completed eight weeks after service of the letter of response. While this provision will be welcomed by many defendants and insurers, the proposed timeframe could be challenging in many cases
  • A new formal stocktaking process which would require the parties to produce a joint formal report setting out the agreed issues, the disputed issues and their respective positions as a final step before litigation. The Professional Negligence Protocol and some other PAPs already include a requirement to stocktake but it is informal and the CJC believes that this is under-utilised in practice and that a more formal process is required
  • New measures for raising compliance issues and enhancing sanctions for breaching PAPs to facilitate a more consistent and robust approach to non-compliance including, potentially, striking out a claim or defence
  • Incentives for the parties to comply with PAPs in the form of a summary costs procedure which would allow the courts to assess costs for cases resolved at the PAP stage and make streamlined directions in cases where parties have made progress during the PAP process. These could be around disclosure and/or pleadings for example
  • Making PAPs more user friendly and available online via portals to which pre-action correspondence would be uploaded
  • Formally recognising that compliance with PAPs would be mandatory except in urgent cases. If the urgency arises due to a limitation issue, the parties should apply to stay the proceedings to allow the PAP process to be completed. It is possible that a further exception may be made for claimants in hopeless cases (such that they would be the subject of a summary judgment procedure) as currently applies in the Pre-Action Protocol for Construction and Engineering Disputes but this is also up for consultation
  • Creating a new general PAP which would be the default protocol where no litigation specific protocol applied and could be used by any litigant in person who was unsure which protocol applied to their dispute.

What happens next?

The consultation closed on 21 January 2022. We are now waiting for the CJC to make its recommendations for change following which a different committee responsible for the Civil Procedure Rules will be charged with identifying the best way to give effect to their recommendations.

This article is for general information only and reflects the position at the date of publication. It does not constitute legal advice.